R v. Sherrard, 2012 NUCJ 04

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Sherrard, 2012 NUCJ 04 Date: 20120308 Docket: 02-11-48 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ashley Sherrard ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Jeanette Gevikoglu Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: March 7-8, 2012 Matters: Criminal Code, ss. 273 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

I. INTRODUCTION [ 1 ] Mr. Sherrard has entered a guilty plea to a single count of aggravated sexual assault. He is now to be sentenced for this offence. II. OVERVIEW A. The circumstances of the offence [ 2 ] On the 14 day of September 2011, the 20 year old female victim AB attended a party at Mr. Sherrard’s residence in community X. She was accompanied by her boyfriend. A number of adults participated in what was to become, for some, a night of heavy drinking. AB had far too much to drink. She passed out on the floor of Mr. Sherrard’s bedroom. Friends offered to take her home. Mr.

Sherrard insisted that AB would be ok where she was. The friends left. So did AB’s boyfriend. [ 3 ] At some point Mr. Sherrard picked up AB and placed her on the bed. He had full sexual intercourse with the 20 year old victim while she was unconscious. He was observed doing this by two other people attending the party. These citizens did not intervene. [ 4 ] Mr. Sherrard then went further. He forced his hand inside the unconscious victim’s vagina and anus. The force used to penetrate the victim was sufficient to cause a tearing of the wall of the rectum through to the vagina. There was significant blood loss.

There would be much pain and discomfort associated with this type of injury. [ 5 ] Mr. Sherrard was intoxicated when this offence was committed, but not so intoxicated that he had no memory of committing the crime before the Court. Mr. Sherrard is said to have been under a lot of pressure and stress from his employment when he committed the offense. [ 6 ] In the early morning hours Mr. Sherrard came to his senses. At approximately 5:00 am he attended the police detachment to seek help for AB. AB was medivaced for medical treatment. Mr.

Sherrard was arrested by the RCMP and has remained in custody since the incident. Mr. Sherrard was cooperative with the authorities and gave a full confession. [ 7 ] The victim has since physically recovered from her injuries. There is no evidence of permanent disfigurement. There is no evidence of any lasting physical disability arising from this attack. The Court has not been provided with any victim impact statement. B. The circumstances of the offender [ 8 ] Mr. Sherrard is 37 years of age. He is a carpenter by trade. He is married with two small children. Mr. Sherrard is ordinarily resident in the south.

He was in Nunavut for reasons of employment when this offence was committed. [ 9 ] Mr. Sherrard has no criminal record. He has a solid record of gainful employment. Despite this offence, Mr. Sherrard’s family remains supportive of him. [ 10 ] In the absence of a criminal record, it can be said that the offence appears to be out of character. [ 11 ] Mr. Sherrard has entered a prompt guilty plea. He readily cooperated with the investigating authorities and gave a full account of

his own involvement in the commission of this offence. Mr. Sherrard’s behavior is consistent with a claim of remorse on his part. [12] Fortunately for the victim, Mr. Sherrard had the good sense to seek help for AB before her condition deteriorated further. It wasMr. Sherrard’s self-reporting that led to the discovery of AB and the speedy provision of medical assistance to her. This is to Mr.Sherrard’s credit. [13] Once arrested, Mr. Sherrard did not seek bail. He has been in actual pre-trial detention since the incident, a total of 176 days. Formuch of this time Mr.

Sherrard has been in protective custody in a special segregation unit. This was done for his own protection. Mr.Sherrard has had limited access to programming for this reason. Crown and Defence jointly submit that a credit of 1.5 to 1 should beapplied to the pretrial detention in these circumstances. If this formula is applied, Mr. Sherras has an accumulated credit of pre-trialdetention of 257 days. II. ANALYSIS [14] AB was a guest in Mr. Sherrard’s home. AB had every right to expect to be protected while in this home. AB was vulnerablebecause she was unconscious and could not protect herself. [15] When Mr.

Sherrard turned down the assistance of AB’s friends to take AB back to her own home, Mr. Sherrard gave assurancesthat AB would be safe in his care. [16] Sexual offences involving sleeping or unconscious victims are a common occurrence in Nunavut. These offences tend to be alcoholrelated. As of 2007, data from Statistics Canada suggests that Nunavut has 13 times the national per capita rate of sexual offences. [17] Courts of Appeal throughout this country have repeatedly stressed the need to emphatically repudiate and denounce this type ofconduct through deterrent custodial sentences.

The moral culpability of an adult who exploits the vulnerability of an unconscious victimfor reasons of personal sexual gratification is very high. The gratuitous infliction of serious physical harm upon a defenseless victim forsexual purposes further heightens an offender’s moral culpability. Where serious bodily harm is inflicted upon a victim in the course ofcommitting a sexual offence, the risk of causing serious psychological harm to such a victim is significantly elevated.

While there is noevidence before the Court of actual psychological damage to the victim in this case, it is the offender’s willful assumption of the risk ofinflicting this harm that propels this offence to the highest level of moral culpability. [18] An aggravated sexual assault carries with it the potential of a life sentence. This type of offence is viewed by Parliament as the mostserious type of sexual offence known to Canadian law. [19] A significant custodial sanction is necessary to reflect the seriousness of this offence. It is necessary for reasons related to bothgeneral deterrence and denunciation. Mr.

Sherrard’s rehabilitation as a first time offender remains an important part of the sentencingprocess. However, the application of the proportionality principle demands a serious consequence in this case that cannot be achieved bya term of territorial imprisonment. [20] The Crown has urged the Court to impose a lengthy term of incarceration in a federal penitentiary. The Crown suggests a sentenceapproximating eight years.

The Defence concedes that a penitentiary term is appropriate, but suggests, in view of the many mitigatingfactors, a sentence of three years less time served would be more appropriate. [21] Defence cites the case of R v Lafferty, 2012 NWTSC 9 , 2012 NWTSC 09, [2012] N.W.T.J. No. 10 [Lafferty], in supportof this lower range of sentence. The court in Lafferty was dealing with an offender convicted of a less serious offence, the offence ofsexual assault causing bodily harm.

This decision is readily distinguishable from the case now before the court. [22] The principle of restraint becomes particularly important in dealing with first offenders who have not only demonstrated remorse,but have good prospects for rehabilitation.

[ 23 ] Sentencing in Nunavut remains a very individualized process. This is a process that must not only take into account the circumstances of the offence and the offender, but must also blend and balance the sentencing principles set out in s. 718 through 718.2 of the Criminal Code . The sentencing process must also recognize remorse and encourage a speedy acceptance of responsibility by offenders by offering a tangible reduction of sentence in circumstances where these factors come into play.

A reduction of sentence under these circumstances is certainly appropriate where there are enhanced prospects of rehabilitation. [ 24 ] This being said, the application of the principle of restraint to an aggravated sexual assault must still reflect the proportionality principle, which is the only sentencing principle described by Parliament as being fundamental to the sentencing process. [ 25 ] The sentence today specifically recognizes not only the aggravating features of this offence, but also the many mitigating factors identified by counsel. Had Mr.

Sherrard taken this case to trial, the result of the sentencing process today would have been very different. Had Mr. Sherrard come before the Court with a criminal record related to violence, the sentence would have been elevated to match it. Had this been a case where the actions of the offender caused lasting disfigurement or a permanent disability to the victim, the sentence could well have equaled or exceeded the Crown recommendations. There were no weapons used to commit this offense, nor was it an offense committed in conjunction with other offenses such as a home invasion break and enter. III.

CONCLUSION [ 26 ] Mr. Sherrard will receive a credit of 257 days or 8 months, two weeks for pre-trial detention. There will be an additional sentence of prison to be served from today of 46 months. This sentence will be served in a federal penitentiary. This is the legal equivalent of a four and a half year gaol term. [ 27 ] There will be a DNA order. Mr. Sherrard has been convicted of a primary designated offence under the Criminal Code . [ 28 ] There will also be an order requiring Mr. Sherrard to submit to the processes of the Sex Offender Registry for life.

Such an order is also mandatory for this type of offence. [ 29 ] There will be a firearms prohibition order for 10 years. This indictable offence falls under s. 109 of the Criminal Code . It is also mandatory. Mr. Sherrard must immediately surrender any firearms ammunition or explosives or Firearms Acquisition Certificate (FAC) now in his possession or under his control to the nearest RCMP detachment. Any such items are forfeited to the Attorney General for disposal. [ 30 ] The victim fine surcharge is waived for reasons of hardship.

Dated at the City of Iqaluit this 8th day of March, 2012 ___________________ Justice R. Kilpatrick Nunavut Court of Justice